Opinion
24A-CR-00806
10-01-2024
Timothy Ray Moore, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT John (Jack) F. Crawford Indianapolis, Indiana ATTORNEY FOR APPELLEE Theordore E. Rokita Indiana Attorney General, Samual J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Grant Superior Court The Honorable Jeffrey D. Todd, Judge Trial Court Cause No. 27D01-1603-F2-2
ATTORNEY FOR APPELLANT John (Jack) F. Crawford Indianapolis, Indiana
ATTORNEY FOR APPELLEE Theordore E. Rokita Indiana Attorney General, Samual J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] Timothy Ray Moore appeals his convictions for dealing in a narcotic, as a Level 2 felony; dealing in marijuana, as a Level 5 felony; and maintaining a common nuisance, a Level 6 felony, as well as his adjudication as a habitual offender. Moore raises one issue for our review, namely, whether the trial court erred when it admitted evidence officers had found during and after the search of his residence. We affirm.
Ind. Code § 35-48-4-1(e) (2015).
I.C. § 35-48-4-10(a).
I.C. § 35-48-4-13.
I.C. § 35-50-2-8.
Facts and Procedural History
[¶2] On March 3, 2016, Detective Wes McCorkle with the Grant County Sheriff's Department was working undercover with a drug task force, and he was investigating Kelly Randolph, who he believed to be involved in the sale of drugs. Detective McCorkle arranged to meet with Randolph, and he purchased "a controlled substance" from her on that date. Tr. at 24. Detective McCorkle then arranged to meet with Randolph again on March 9 in order to purchase one gram of heroin from her.
[¶3] To prepare for the meeting on March 9, Detective McCorkle obtained four hundred dollars of buy money from the J.E.A.N. Team Drug Task Force Office, and he prepared his audio and video surveillance equipment. Detective McCorkle then drove to Randolph's mother's house to meet Randolph. At that time, Detective McCorkle gave Randolph two hundred dollars of the buy money. Randolph then mentioned that there was a second gram of heroin available at another location, and Detective McCorkle agreed to purchase it.
The record does not indicate what, if anything, J.E.A.N. stands for.
[¶4] At Randolph's direction, Detective McCorkle drove her to a trailer. When they arrived, Randolph exited the vehicle with the task force money and went into the trailer while Detective McCorkle waited in the car. After several minutes, Randolph exited the trailer with two other individuals, one of whom was Josh Smith. The three individuals got into Detective McCorkle's vehicle. At that point, Randolph handed Detective McCorkle the original gram of heroin he had purchased. The four then drove to a house on 7th Street with the "intent" to "purchase another gram." Id. at 34.
[¶5] When they arrived, Smith entered the residence with at least $200 of the buy money. When he returned, Detective McCorkle asked if they "were good," which was his way of asking if Smith was "able to purchase the drugs." Id. Based on Smith's response, Detective McCorkle believed that a transaction had occurred. However, Smith did not give anything to Detective McCorkle. Detective McCorkle then started driving back toward the trailer. During his drive, officers conducted a prearranged traffic stop of Detective McCorkle's vehicle and searched the occupants. Officers found money on Smith and Randolph, which they were able to confirm was money from the drug task force office that Detective McCorkle had obtained.
[¶6] Lieutenant Scott Haley with the drug task force submitted oral testimony to the trial court in order to obtain a search warrant for the residence on 7th Street. Haley testified to the events that had occurred with Detective McCorkle. He then testified that Smith had entered the residence, met with "a guy that [Smith] knew as Ray," and paid "Ray some money for . . . heroin," but that he "did not score any heroin as the . . . individual said that he didn't have any." Appellant's App. Vol. 2 at 133. Lieutenant Haley then requested a warrant "to enter the residence to obtain our photocopied buy money that Mr. Smith had taken into the residence." Id. Lieutenant Haley testified that the officers had retrieved $110 of the original $400, and he clarified that the "only thing" he sought was a warrant "for the recovery of the photocopied J.E.A.N. Team buy money[.]" Id. The court found that "probable cause exists for the issuance of the warrant." Id. at 134. Lieutenant Haley then requested authorization to conduct a "no knock search warrant," which the court granted. Id.
The transcript of the oral testimony is written entirely in capitalized letters, which we have removed.
[¶7] After the court issued the warrant, approximately ten SWAT team officers used a battering ram, broke down the door to the home, and threw in canisters of gas. Officers found Moore, another individual, and two juveniles in the house. Officers then searched the home and found 16.97 grams of methamphetamine, 27.43 grams of heroin, and mason jars full of marijuana. Officers also found a trophy with Moore's name on it and mail addressed to Moore at that address.
[¶8] Officers arrested Moore and transported him to jail. There, they found $800 in Moore's possession. Officers then read Moore his Miranda rights, and Moore agreed to speak to officers. Moore stated that Smith had been to his house earlier that evening "to purchase heroin." Tr. at 77. Moore also admitted that he sold narcotics "to make extra money." Id.
[¶9] The State charged Moore with dealing in a narcotic, as a Level 2 felony (Count 1); dealing in a narcotic, as a Level 5 felony (Count 2); dealing in marijuana, as a Level 5 felony (Count 3); maintaining a common nuisance, a Level 6 felony (Count 4); and two counts of neglect of a dependent, as Level 6 felonies (Counts 5 and 6). On January 31, 2024, Moore filed a motion to suppress "certain items seized during the execution of" the search warrant. Appellant's App. Vol. 2 at 129. In that motion, Moore alleged that the affidavit in support of the search warrant did "not state facts sufficient to show probable cause" that evidence of a crime would be found at his home. Id. Moore also alleged that the no-knock entry "was made without a reasonable suspicion that knocking and announcing police presence would be a danger or futile[.]" Id. at 130. As such, he maintained that "[a]llowing the prosecution to introduce items seized as a result of the illegally defective warrant would violate" his constitutional rights. Id.
I.C. § 35-48-4-1(a).
I.C. § 35-46-1-4(a)(1).
[¶10] The court heard oral argument on Moore's motion on February 7. Moore asserted that there was "insufficient evidence" to allow "a reasonably prudent judge to determine that there was indicia or evidence of criminality" but that, on the contrary, the police "had no evidence that a drug transaction had occurred." Tr. at 6. The State responded that "the buy money is evidence of an illegal enterprise, i.e. drug dealing" and that the "money is evidence, not only of what . . . they believed could have occurred inside of that house between Mr. Smith and Mr. Moore, but what had already occurred earlier in the night with one gram of heroin, so it's evidence of two crimes." Id. at 8-9.
[¶11] Following the hearing, the court issued its order denying Moore's motion to suppress. In particular, the court found that "[a]ll evidence pointed toward the conclusion that the missing $290 in buy money would be located" in the residence and that the "money was evidence of two possible episodes of criminal conduct." Appellant's App. Vol. 2 at 146. The court also found that the no-knock warrant was "reasonable under the circumstances[.]" Id. at 147.
[¶12] The trial court held a bench trial on February 13, during which the State presented the testimony of two officers and laboratory test results as evidence. After the State had rested, the trial court dismissed Counts 5 and 6 on the State's motion. The trial court found Moore guilty of Counts 1, 3, and 4 but not guilty of Count 2. Moore then stipulated to being a habitual offender. The court entered judgment of conviction accordingly and sentenced Moore to an aggregate term of twenty-eight years in the Department of Correction. This appeal ensued.
Discussion and Decision
[¶13] Moore contends that the trial court erred when it admitted as evidence the items officers had seized pursuant to the search warrants. Moore initially challenged the admission of this evidence through a motion to suppress but now appeals following a completed trial. As we have explained:
Redfield v. State, 78 N.E.3d 1104, 1106 (Ind.Ct.App. 2017) (internal quotation marks and citations omitted), trans. denied. "In deciding whether to issue a search warrant, '[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Jaggers v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).[The defendant's] arguments that police violated his Fourth Amendment and Article 1, Section 11 rights raise questions of law we review de novo. As the United States Supreme Court has explained with respect to the Fourth Amendment, as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal, while findings of historical fact underlying those legal determinations are reviewed only for clear error. The Indiana Supreme Court applies the same standard under Article 1, Section 11. In other words, we review whether reasonable suspicion or probable cause exists under a standard similar to other sufficiency issues-whether, without reweighing the evidence, there is substantial evidence of probative value that supports the trial court's decision.
[¶14] Under the Fourth Amendment to the United States Constitution, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. To preserve that right, a judicial officer may issue a warrant only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. "Article 1, Section 11 of the Indiana Constitution contains language nearly identical to its federal counterpart." McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018). "And our statutory law codifies these constitutional principles, setting forth the requisite information for an affidavit to establish probable cause." Id. (citing I.C. § 35-33-5-2).
[¶15] On appeal, Moore contends that the search of his home was illegal because it violated his rights under the Fourth Amendment to the United States Constitution, his rights under Article 1, Section 11 of the Indiana Constitution, and Indiana Code Section 35-33-5-2. In particular, Moore asserts that Lieutenant Haley's oral application for the warrant "was completely devoid of evidence" to show that a crime had occurred. Appellant's Br. at 9. He maintains that, on the contrary, the application demonstrates that Smith had been unable to purchase heroin because Moore indicated that he did not have any. He also asserts that the "affidavit does not even assert that Smith is 'reliable and credible.'" Id. at 13.
[¶16] However, we need not address his specific contentions regarding the inadequacy of the search warrant. The lack of probable cause does not necessarily require the suppression of evidence obtained during a search conducted pursuant to a warrant. Snow v. State, 137 N.E.3d 965, 969 (Ind.Ct.App. 2019). "Indeed 'the exclusionary rule does not require the suppression of evidence in reliance on a defective search warrant if the police relied on the warrant in objective good faith.'" Id. (quoting Jackson v. State, 908 N.E.2d 1140, 1143 (Ind. 2009)). The good faith exception has been codified at Indiana Code Section 35-37-4-5(a), which provides that "the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a law enforcement officer in good faith." Accordingly, to establish reversible error, Moore must demonstrate both the lack of probable cause and the inapplicability of the good faith exception. Id.
[¶17] There are two circumstances where the good faith exception does not apply. Id. Those include situations where the magistrate is misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth or situations where the warrant was based Court of Appeals of Indiana | Memorandum Decision 24A-CR-806 | October 1, 2024 Page 9 of 12 on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Id. at 969-70.
[¶18] In his initial brief, Moore failed to make any argument regarding the good faith exception, and he did not direct us to any evidence in the record, or make any argument, that the magistrate was misled by information in the affidavit that Lieutenant Haley knew or should have known was false. See Ind. Appellate Rule 46(A)(8)(a). Neither does he assert that the warrant was so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable. See id. Accordingly, Moore has failed to meet his burden on appeal to demonstrate that the trial court erred when it admitted as evidence items that officers had obtained during and following the search conducted pursuant to the warrant.
For the first time in his reply brief, Moore asserts that the good-faith exception does not apply. However, the law is well settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first time in the reply brief, they are waived. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).
[¶19] Moore also briefly contends that the court erred when it admitted his confession as evidence. The entirety of Moore's argument on this issue is as follows: "Clearly the confession to police made by Moore was gained as a result of information or leads obtained during the illegal search of his residence," and, as such, was fruit of the poisonous tree. Appellant's Br. at 14.
[¶20] "One branch of Indiana's exclusionary rule-universally known as the fruit of the poisonous tree doctrine-operates to omit from trial evidence directly or derivatively obtained from an illegal search or seizure." Wright v. State, 108 N.E.3d 307, 314 (Ind. 2018). However, "Indiana law recognizes two exceptions to the exclusionary rule and the fruit of the poisonous tree doctrine[, o]ne being the good faith exception, where illegally obtained evidence is not excluded if law enforcement acted in objectively reasonable reliance on what they thought was a valid warrant." Id. (quotation marks omitted). As stated above, Moore failed to make any argument regarding the good faith exception. As such, he has not met his burden to show that the court erred when it admitted his confession as evidence.
Conclusion
[¶21] The trial court did not err when it admitted as evidence the items officers seized during a search of Moore's residence or when it admitted Moore's subsequent confession. We therefore affirm Moore's convictions.
[¶22] Affirmed.
Tavitas, J., and Felix, J., concur.